Musk and Dorsey’s Call to ‘Delete All IP Law’ Ignores Reality

When Twitter Inc. (now X Corp.) co-founder Jack Dorsey recently proclaimed that we should “delete all IP law” and Elon Musk replied “I agree,” they likely weren’t the first to wish for the end of intellectual property law. And they likely won’t be the last. But IP law exists for a reason.

The Constitution’s Progress Clause—Article I, Section 8, Clause 8—gives Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The Progress Clause was grounded in the Federalist Papers. In the Federalist No. 43, James Madison noted that “the utility of this power” to provide IP rights “will scarcely be questioned,” as copyright had been a right in Great Britain at common law, and that the public good coincided with both copyright and patent rights.

Congress, since the nation’s founding, has provided for copyright and patent protection, and has expanded IP protection at the federal level through trademark and trade secret laws. These IP rights from Congress have been vital to America’s leading role in the global innovation economy.

Much has changed since the 1780s, of course, but there have been monumental changes just over the past several years. The internet of things and artificial intelligence have become mainstream, requiring massive amounts of data and millions of devices that interoperate and communicate with each other.

The US has issued more than 12 million patents (and counting). In contrast to the patents from decades past, the most recently granted patents cover complex semiconductors, AI-based systems, standardized technologies such as WiFi and video coding, machine learning systems, new-age medical devices, and more.

Copyrights cover complex computer animations, works of art, music, video, and even source code. And those copyrighted works are being embedded into AI models that are fed massive amounts of training data. None of this could have been envisioned by the Framers of our Constitution.

Nor could any of these trends in innovation have been envisioned by Congress until very recently. If IP rights covering these emerging technologies are abused or exploited, or our IP laws fail to account for emerging technologies, there is perhaps a risk that IP law might stifle innovation. And certainly, one can see how navigating the complex thicket of patents, copyrights, trade secrets, and other IP protections might be seen as a nuisance to people such as Dorsey and Musk.

But those aren’t reasons to “delete” IP law. Dorsey, Musk, and similar-minded people ignore that patent rights provide a valuable disclosure function to the public, helping to build the body of knowledge that advances progress and ideas.

IP rights also provide credibility to both up-and-coming and established innovators. Without patents, early-stage companies might struggle to demonstrate that they have something new or proprietary. This is why venture capitalists and investors on TV shows such as “Shark Tank” frequently ask companies seeking investments if they have patents.

Established companies can use patents to demonstrate the scale and scope of their innovations. Patents also provide inventors and companies with a mechanism to go on offense or defend themselves in the event of a lawsuit, both to show their own technological advances to juries and to countersue competitors who may be using their technology.

Likewise, copyright law encourages authors and creators to generate new forms of expression. Without copyright, creators would have little incentive to create new works, and they wouldn’t be compensated for their original creations. Copyright’s fair use doctrine seeks to balance the rights of creators and the public interest—consistent with the Progress Clause—to provide certain carveouts from compensation in particular contexts.

For example, the US Supreme Court has found that recording TV shows to watch them later using a tape is acceptable fair use, and that Google’s use of Oracle’s building blocks of application programming interface passed muster. But it said Andy Warhol’s artistically modified photos of Prince in a commercial publication wasn’t fair use.

A major motivation for Dorsey’s and Musk’s exchange was their frustration over the ongoing debate over whether fair use can be applied to copyrighted works that are used to train AI models. That fair-use question is being hotly debated, with around 40 pending cases and only one court having weighed in on the issue to date.

But again, the fact that this issue might be uncertain or potentially unfavorable to Dorsey or Musk isn’t a reason to “delete” copyright law. It’s a reason to have genuine policy discussions.

Trade secret and trademark law also play a key role in the innovation economy. Without laws such as the Defend Trade Secrets Act, companies and entrepreneurs can’t protect their secret sauce—including the formulas, algorithms, selections of training data, and parameters within their AI models. And they would have little recourse if a vendor or collaborator simply chose to steal those secrets.

Musk’s own company, Tesla Inc., has filed several trade-secret lawsuits, including Tesla v. Rivian, which was settled last year. Likewise, Musk apparently appreciates the importance of trademarks, having famously directed his “nicest employee” to camp out for days to secure the rights to the “Tesla Motors” trademark that is so vital to his brand.

At the end of the day, Dorsey and Musk seem to have forgotten that IP law was vital to their success—just as it’s vital to everyone’s future success in the innovation economy.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Christopher A. Suarez is a partner at Steptoe and an intellectual property litigator.

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